EU Conflict Minerals
The European Parliament voted on March 16 to adopt a regulation related to control of what has become known as “Conflict Minerals”. The regulation has some significant differences from the US SEC regulation. One critical difference is that it will impose due diligence rules on companies importing tin, tantalum, tungsten and gold, rather than downstream users or solely publicly held manufacturers.
To the extent these metals are used as raw materials for components and items used in the manufacture of electrical and electronic products in the European Union there will be an impact on the local electronics industry, but I expect it to be relatively minimal. The SEC’s regulation ignored the fact that publicly held manufacturers are generally too far downstream of smelters and raw material importers to have a direck impact. To support the requirement, a complex and sophisticated system had to be developed and implemented in order to allow the deep visibility required. The existence of this system can be expected to be of significant benefit to EU metal importers, to be sure.
To become effective, the regulation still has to be formally adopted by the Council. This is expected to occur in May, with the regulation coming into force at the beginning of 2021. Visit the EU’s Conflict Minerals website for more information.
Another EU RoHS Update
Two items: First, on January 27, and to virtually no fanfare despite being over 2 1/2 years late (per the timeline required by Article 24(1)), the European Commission published an impact assessment and its proposal to amend Directive 2011/65/EU to address several issues related to the wording in Article 2 around scope. The wording impacts the following (taken from the Impact Assessment Executive Summary):
- 1. The hard stop of secondary market operations for electrical and electronic equipment (EEE) covered by RoHS 2 and not by RoHS 1 (Directive 2002/95/EC);
- 2. Effects of RoHS 2 on spare parts for certain EEE, not in scope of RoHS 1;
- 3. RoHS 2 resulting in stopping the placement on the market of pipe organs; and
- 4. RoHS 2 resulting in market distortion for cord-connected non-road mobile machinery (NRMM).
The Commission assessed a number of approaches to the problems presented by each issue, include the approach of taking no actions. Reviewing the assessment, it appears to me that the Commission has selected to propose the most rational approach for each of the situations:
- 1. Restoring secondary market operations: Option 2 – only for medical devices and monitoring and control instruments; Option 3 (preferred) – for all new in scope EEE (Categories 8, 9 and 11);
- 2. Spare parts: Option 2 (preferred) – spare parts provision to allow repair of pre-RoHS 2 EEE;
- 3. Pipe organs: Option 2 (preferred) – scope exclusion; Option 3 – interpretation guidance; Option 4 – temporary RoHS 2 exemptions; and
- 4. Cord-connected NRMM: Option 2 (preferred) – exclude also cord-connected NRMM..
Second, on February 9, Oeko Institut submitted their final report on the Pack 11 exemption requests titled “Study to assess 2 RoHS new exemption requests: #1 for lead in bearings and bushes of professional-use non-road equipment engines; #2 for lead in solders used to construct and connect to Peltier thermal cyclers used for in-vitro diagnostic analysers that use polymerase chain reaction (Pack 11).”
The exemption for lead in bearings and bushes (AKA bushings) is recommended to be granted essentially as requested. The other exemption, for lead in solders for Peltier thermal cyclers, is recommended to be denied. Denials are always interesting and give us the opportunity for an object lesson.
In denying this request, Oeko concludes the following:
Overall, the situation clearly shows that scientifically and technically, the substitution of lead in the requested exemption is practicable, but requires a thorough redesign of the devices, here of the CTM and CTM48 IVD PCR analyser systems. The RoHS Directive requires manufacturers to adapt their designs if this allows eliminating the use of a restricted substance.
This determination is based on the fact that competitors to the company requesting the exemption, Roche Diagnostics Ltd., did not support the request and there are examples of other products that do not require lead-based solder for the same function, produced by the same manufacturer! What seemed to really put a stake in the decision is the fact that Roche asked that the exemption be granted only through December 2020 since the company plans to end support for the specific products that use this technology by then.
Fundamentally, the company appeared to Oeko to be trying to find a way to simply extend the life of the product for a few years beyond 22 July 2016 (which is when Category 8 IVD equipment came into scope) without going through a redesign process. The requirements for an exemption application to have a chance of success include:
- • Elimination of the restricted substances “is scientifically or technically impracticable”,
- • Reduced reliability of substitutes, or
- • The total negative environmental, health and consumer safety impacts caused by substitution are likely to outweigh the total environmental, health and consumer safety benefits thereof.
Nowhere in article 5(1)(a) is “economic viability” stated. Assuming the Commission adopts this recommendation, the company can maintain product that was placed on the market prior to 22 July 2016 but it may not place any new units on the market after that date as long as they use lead in this solder application.
The lesson: focus your argument on the requirements, keep a close eye on the timelines RoHS (and other regulations) provides, and understand whether/how your competitors are getting around whatever challenge you face. You may have to reverse engineer their products to discover that, but Roche had well over five years to either redesign or replace the product. Don’t expect sympathy for either economic hardship or a compressed timeline to be expressed in an Oeko Institut conclusion or recommendation.
We anxiously await the Commission’s imminent decision on the critical and widely used exemption extension applications addressed in the Pack 9 report (which may well be out by the time you read this); there’s no rest in sight for the Commission’s RoHS Policy Officers or the electronics industry.